Roadside Products Pty Ltd v Cocker [2018] TASSC 6 - TASSC 2018 case summary — Zoe

TASTASSC

Roadside Products Pty Ltd v Cocker [2018] TASSC 6

[2018] TASSC 6

Supreme Court of Tasmania|2018-02-13|Before: Brett J

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Source facts

Court

Supreme Court of Tasmania

Decision date

2018-02-13

Before

Brett J

Source

Original judgment source is linked above.

Judgment (80 paragraphs)

[1]

The applicant's counsel further submitted to the magistrate that the failure to provide these particulars had the effect that the charge did not comply with the requirements of the Justices Act and was therefore invalid and should be struck out. The limitation period, which was a period of two years from the date that the offence first came to the notice of the regulator, which was the day of the incident, had expired: s 232 of the Act. It was argued that it would be unfair to permit amendments which would cure the identified deficiencies in the pleading, and hence make valid an otherwise deficient charge, out of time.
The applicant also submitted that the pleading was bad for duplicity. This submission was based on the assertion that each subparagraph of s 19(1) and (3) created a separate duty, and, accordingly, the breach of each duty was a separate offence under s 33. According to the submission, the complaint effectively rolled up several alleged offences within one charge.
The magistrate, relying on the decision of Porter J in Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454, rejected the submission in relation to duplicity. However, his Honour agreed with the applicant's submission that there were deficiencies in the particulars, although, without expressly deciding the point, he does not seem to have accepted the submission that this rendered the charge invalid.
Because the respondent had disavowed reliance on particulars 1 and 2 (of subpar (i) i), his Honour considered particulars 3, 4 and 5 only. In relation to particular 3, he noted that it was unclear how it was alleged that a sloping or inclined surface created a risk. He observed that the particulars "in their current state are cryptic in form and content particularly in relation to the identification of the specific risk to health and safety". His Honour noted, however, that these issues could be answered by reading the investigation report.

[27]

A matter which the court considered of considerable importance to the question of amendment was whether the appellant was able to identify the true nature of the alleged offence from other information that had been received by it. It noted that relevant information may have become available as a result of the issue and service of a prohibition notice and an improvement notice. Such information may also be provided by the prosecution brief of evidence.
In the case before me, the magistrate correctly identified that the original and proposed amended particulars of the complaint were defective in that they did not "give reasonable information of the nature of the matter complained of". In particular, insofar as the complaint alleged a failure to provide and maintain a work environment without risk to health and safety, the complaint did not identify the risks in question. Further, it provided little, if any, information as to how unloading from a sloping surface or failing to provide designated loading or unloading zones, or a designated loading exclusion zone, would obviate the relevant risk. In terms of the provision of training information or instruction, there was no particularisation of the standard operating procedure or instruction for the loading or unloading of trucks that would obviate the risk in question. These deficiencies meant that it was impossible for the applicant to understand the manner in which it was alleged that it had breached its duty under s 19 of the Act.
Despite these deficiencies, I am satisfied that the complaint was not invalid so as to render the proceedings a nullity. The charge alleges the essential elements of an offence under s 33 of the Act. It clearly asserts the existence of the health and safety duty and the failure to comply with that duty. It discloses an offence. However, what is required is further clarification of the way in which it is alleged the applicant has committed the offence. It is defective in that it does not contain "such particulars as will give reasonable information of the nature of the matter complained of": Justices Act, s 30(1)(b). Accordingly, in compliance with s 31(3), the magistrate correctly identified that it was necessary to consider whether he ought amend the complaint to cure these defects. Such consideration would necessarily involve all of the considerations already referred to, including the impact of any information made available to the applicant within the limitation period.
It is clear, therefore, that the magistrate had not completed the procedural process required by s 31(3). He had proceeded no further than identifying the defect. Had the matter been relisted and further argued, there would have been an opportunity for consideration of the various matters relevant to the exercise of his discretion, as noted in Kidman & Co v Lowndes. This may have included the assessment of the information available to the applicant prior to the expiration of the limitation period.
In these circumstances, I am satisfied that the magistrate has not yet made an order which is capable of review. His ruling implicitly accepts that the complaint alleges an offence known to law and, hence, the proceedings are not void. In this respect, he is not mistaken. However, although his Honour has identified deficiencies in the particulars of the complaint, there has been no determination or adjudication because the magistrate has not yet completed the procedural process set out in s 31(3). His decision cannot be reasonably anticipated because he has not yet been provided with sufficient information to enable him to properly make the determination as to whether the complaint ought be amended so as to cure the defect, and as to whether he ought exercise his discretion in that regard.
Accordingly, the review is not authorised by s 107 and I am without jurisdiction. The motion will be dismissed. I make the observation that it is appropriate for the magistrate to finalise his consideration of the matter, having regard to the provisions of s 31(3), guided by the observations that I have made in the course of these reasons.
Although it is not strictly necessary for me to do so, it is also appropriate, having regard to the argument before me, to make some observations concerning the question of duplicity. A complaint which is bad for duplicity is capable of cure, in particular, by election, and hence, for the reasons expressed above, will not render the proceedings invalid. If there is duplicity, then this matter will also need to be addressed by the magistrate.
As already noted, the argument relies upon the proposition that each subparagraph of s 19, that is s 19(1) and (2), and each subparagraph of s 19(3), creates a separate duty. If that is correct, then the breach of each individual subparagraph will create a discrete offence under s 33.
This submission is supported by the decision of Fullagar J in Chugg v Pacific Dunlop Limited [1988] VicRp 49; [1988] VR 411. The submission is made notwithstanding the decision of Porter J in Kent v Gunns Limited (above) in which his Honour held that s 9(1) of the predecessor of the current legislation, the Workplace Health and Safety Act 1995, created one offence only. That legislation is significantly different in structure from the current legislation, which is substantially similar to the legislation considered in Chugg. In Chugg, Fullagar J held that each subparagraph of the equivalent to s 19(3) of the current legislation, created a separate obligation, a breach of which was constituted as an offence having regard to the equivalent to s 33. Accordingly, the allegation of several breaches within a single charge rendered the charge bad for duplicity. His Honour considered that this defect could not be cured without the prosecution electing the offence in respect of which it would proceed. This view is consistent with s 29 of the Justices Act.
Section 233 of the Act appears to directly abrogate the prohibition against duplicity in respect of offences arising under s 33. Section 233 provides as follows:

[33]

To have any real meaning, the section must be interpreted in the context of the operation of the offence provisions set out in Div 5 of Pt 2. Those sections create offences in respect of conduct which is contrary to or inconsistent with a health and safety duty as defined by s 30. Section 233 therefore has clear effect and meaning if a health and safety duty provision is referable to a provision of Divs 2, 3 or 4 of Pt 2 that imposes a duty. Section 233(1) will apply where two or more contraventions of such a provision have been alleged, provided the contraventions arise out of the same factual circumstances. An allegation of the contravention of two or more provisions, each imposing a separate duty, will not fall within s 233.
A matter which is crucial to the proper application of this provision is the interpretation of the word "provision". The clear intent of the section is to abrogate the prohibition against duplicity, insofar as it applies to more than one contravention of the same provision, notwithstanding that each contravention might be charged as a separate offence. The section can be easily applied, provided that it can be determined that the contraventions are of the same health and safety duty provision, rather than separate provisions.
Mr Taylor argues that each separate subparagraph of s 19 is a separate provision. He submits that each subparagraph of s 19(3) creates a separate duty and hence constitutes a separate health and safety provision for the purposes of s 233. Accordingly, s 233 does not save this complaint from invalidity for duplicity because it rolls up allegations of breach of two or more subparagraphs.
It is apparent that s 19(1) and (2) impose separate duties. The obligations are directed towards the protection of separate persons. Section 19(3) sets out specific obligations. The wording of the charge suggests that the applicant owed separate duties to Mr Dingjan. However, an examination of the duties asserted suggests that they engage separate provisions of s 19(3), in particular s 19(a), (c) and (f). It is crucial, therefore, to determine whether each subparagraph of s 19(3) is a discrete "provision", or simply part of a single "provision" constituted by s 19(1) and (3).
Clearly, the reasoning in Chugg provides some support for Mr Taylor's argument_._ However, Chugg is a single judge decision of the Supreme Court of Victoria. In S Kidman & Co v Lowndes (above), the Court of Appeal of the Northern Territory considered legislation identical to the current Tasmanian legislation. The court specifically considered the question of the role played by the multiple subparagraphs of s 19(3). It held that for the purposes of the offence provision, s 19(1) and (2) created separate health and safety duties. In respect of s 19(3), the court's view was as follows at [64]:

[37]

The complaint was served on the defence on 12 November 2015. On 18 November 2015, the defence requested that the prosecution provide its brief of evidence. This brief was not received by the defence until 25 January 2016.
The brief provided to the defence contained a substantial number of documents, largely comprising summaries of evidence and documentary evidence arising from the respondent's investigation. However, the list of documents referred to two documents, an executive summary and an investigation report, copies of which were not provided with the brief.
On 8 June 2016, a summons was issued by a justice which required the respondent to appear before the Magistrates Court and produce the executive summary and investigation report. The authority for the summons was s 44 of the Justices Act. It is clear from the terms of that section, and common ground between the parties, that the respondent was not bound to produce the relevant documents if he was entitled to object to their production on the basis of client legal privilege_._
Those objections were in fact maintained by the respondent before the magistrate. His Honour heard evidence and submissions, and reviewed both documents. He rejected the claim of privilege in relation to the executive report and a portion of the investigation report, but upheld the claim in respect of the balance of the investigation report. The motion seeks a review of his Honour's decision to uphold the claim of privilege in respect of any part of the report.
On the hearing of the review, the issue was confined to the question of whether the magistrate correctly upheld the claim of privilege. Although it had been the subject of submissions before the magistrate, there was no issue between the parties on the review that the summons had been validly issued, and it was accepted that, but for the claim of privilege, the documents should be produced. Further, it was not suggested that there was an overriding duty of disclosure in respect of these documents, which made the claim of privilege irrelevant. The substantive issue before me is limited to the question of whether the magistrate correctly upheld the claim of privilege. However, the respondent also submits that I do not have jurisdiction to determine this question, as the magistrate's ruling does not amount to an order within the meaning of s 107, and accordingly is not amenable to review under that provision.

[42]

These comments have been accepted and applied by a number of single judges in relation to this question, eg Mitchell v Marshall [2012] TASSC 4 at [15]. I also agree with those comments.
There are good reasons why a procedural determination, or a ruling related to the admissibility of evidence during the course of a hearing, is not properly defined as an order amenable to review. From a practical point of view, the capacity of a party to seek immediate and discrete review of such a ruling would be unacceptably disruptive to the proper administration of justice. Further, it would, in the normal course, be impossible for a court to determine whether the incorrect ruling has resulted in a substantial miscarriage of justice for the purposes of s 110(2)(ab) of the Justices Act, at that point of the proceedings.
However, the determination sought to be reviewed in this case is in a different category. Section 131A of the Evidence Act provides for the determination of an objection in respect of a requirement for disclosure, which would extend to the summons issued in this case. It is clearly contemplated that that determination will be made, in an appropriate case, prior to the commencement of the proceedings and will apply the relevant provisions with respect to privilege contained in the Evidence Act. The determination of the provision of such information, prior to the commencement of the actual hearing, has the capacity to affect and inform the course, conduct and nature of the hearing. In the case of the defence, it could conceivably have real implications with respect to the conduct of its case, including the decision by the defendant as to whether to give or adduce evidence. It is certainly possible to test at the conclusion of the hearing whether there has been a miscarriage of justice, but there are discernible benefits with respect to the due and efficient administration of justice, if such a decision is made, and if necessary reviewed, prior to the commencement of the hearing proper. I am satisfied, therefore, that the determination of the magistrate was an order within the meaning of s 107, and, accordingly, the Court has jurisdiction to conduct a review of that determination.

[59]

Despite the formulation of this ground, the submissions reveal that the real complaint is that the applicant and its lawyers, who have only had access to the first part of the document, were not aware during the course of the hearing before the magistrate that there was in fact a second part to the document. Mr Taylor, who appeared as counsel for the applicant before the magistrate and on the hearing of the review, made the point that Mr Hurley referred only to two different "phases", and without seeing the document, it was impossible to understand that this was in fact a reference to documents, and that there was a further part to the subject document. The applicant's submission is that it was therefore caught by surprise, and counsel was not in a position to effectively cross-examine Mr Hurley as to his evidence concerning the purpose of the creation of the prosecution report.
Although the defence has not seen the full document, the magistrate had the benefit of inspecting it and I also have reviewed the entire document. This is consistent with the Court's authority under s 133 of the Evidence Act. This process was approved by the New South Wales Court of Appeal in Bailey v Department of Land and Water Conservation [2009] NSWCA 100. In that case, it was noted that the court inspecting the document is entitled to draw reasonable inferences from its contents, including with respect to whether the document came into existence with the dominant purpose of providing legal advice or legal services in respect of legal proceedings.
There is no doubt that Mr Hurley's evidence was somewhat obscure. He did not, in his affidavit, refer to the fact that the report contained two separate parts. In his oral testimony, he used the term "phase". Phase has a temporal context and it is understandable that defence counsel, without an opportunity to review the document, would misunderstand this reference. However, Mr Hurley was also clear that Phase 2 was only initiated after consideration of Phase 1. Upon reflection, it would have been reasonably discernible that this was a reference to the preparation of a separate part of the document for a different reason. Mr Hurley was not questioned about this terminology during cross-examination.
In any event, it is apparent on inspection that the document is divided into two distinct parts. The first part is entitled "Investigation Report", and the second part, "Prosecution Report". The documents are clearly prepared separately and discretely.
The privilege which is claimed under ss 118 and 119 attaches to "a confidential document". Section 3(10) provides that a reference in the Act to a document includes a reference to "any part of the document". Accordingly, privilege is capable of attaching to a part of the document, notwithstanding that it does not attach to the balance.
The approach taken by the magistrate was correct. He had differential evidence in relation to each part of the document and the two parts are discrete and clearly identifiable. Although the defence was at a disadvantage in terms of understanding the existence of the two parts, there has been no miscarriage of justice. It is not suggested by Mr Taylor that had he been aware that there was a further part to the document that he would have been entitled to inspect it. The approach adopted by the magistrate by considering the claim of privilege by reference to the separate parts of the document is unassailable.
There is no merit in this ground of review.

[76]

The question which arises is whether the voluntary provision of the report to the coroner falls within the ambit of s 122(3)(a) and hence results in the loss of privilege under s 122(2).
The respondent argues that there are four reasons why the provision of the document to the coroner does not result in the loss of privilege. Two of the reasons can be disposed of briefly. They rely on the premise that the coroner is a constituent of the Crown. Accordingly, so the argument goes, the coroner and the respondent have a common interest and are, in fact, the same person. Hence, there has not been disclosure to another person.
There is no merit in this submission. The premise is clearly incorrect. The coroner exercises jurisdiction within the Coronial Division of the Magistrates Court. That Division is established by s 5 of the Coroners Act 1996. By s 11 of the Coroners Act, the coroner is required to take and subscribe the judicial oath. By s 3A(2) of the Magistrates Court Act 1987, the Magistrates Court is a court of record. Although the separation of powers, specifically between the courts and the executive, is not enshrined in the State Constitution, the separation of judicial power in the Australian Constitution has some limited application to courts invested with Federal jurisdiction: Kable v Director of Public Prosecutions New South Wales [1996] HCA 24; (1995) 189 CLR 51. The Magistrates Court is such a court. In any event, the separation between courts and executive is recognised at a practical level and by convention. Further, irrespective of the basis and extent of the separation, there is nothing in the Coroners Act which would suggest that a coroner is a constituent of the Crown, as is submitted by the respondent.
These submissions are rejected.
The respondent further argues that the documents were provided under threat of compulsion, in particular the exercise by the coroner of the power under s 53(1)(a) of the Coroners Act. The respondent submits that disclosure in the face of a threat of a compulsory process does not amount to a waiver of privilege, and relies upon Woollahara Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529. That case was decided under the common law and may be of limited assistance in respect of a determination under s 122. Section 122(3)(a) will apply where there has been a voluntary disclosure. However, it is relevant to consider whether a disclosure made under threat or anticipation of compulsion can properly be described as a voluntary disclosure.
By s 21 of the Coroners Act, a coroner has jurisdiction to investigate a reportable death. By s 24, a coroner who has jurisdiction to investigate a death must hold an inquest in certain circumstances. Those circumstances include where the deceased has died at or as a result of an accident or injury that occurred at his place of work. Accordingly, an inquest into the death of Mr Dingjan was mandatory.
The only power of a coroner to require production of the document in question arose in respect of that inquest, pursuant to s 53(1)(a). Under that provision, if the coroner reasonably believes it is necessary for the purposes of the inquest, the coroner may summon a person to produce any document. The coroner had no other power to compel production.
Of course, the document in this case was not provided pursuant to such a process. There is no suggestion that the coroner had threatened to issue a summons. The respondent may have anticipated that such a summons would follow as a matter of course, but it cannot be said that there was any certainty about that. In any event, the decision to provide the document in anticipation of the issue of such a summons suggests a desire on the part of the respondent to co-operate with the coroner's investigation by voluntarily providing the documents without the need for the issue of a summons. If this was the case, it would clearly amount to a voluntary disclosure. There is no evidence to the contrary.
A further consideration which arises is that even if a summons had been issued pursuant to s 53(1)(a) requiring production of the document, the respondent would have been entitled to claim client legal privilege in respect of it. In my view, this is the case despite the provisions of s 51, which provides that a coroner holding an inquest is not bound by the rules of evidence. It is now established that legal professional privilege is a rule of substantive law and not merely a rule of evidence. See The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; AWB Ltd v Cole [2006] FCA 571. The rule may be abrogated or excluded by statute, but only when an intention to do so is stated expressly or by clear and unmistakable implication in the legislation: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. This must also be the case notwithstanding the provisions of s 53(4) which provides that a person must not, without reasonable excuse, disobey a summons, order or direction. That provision will not of itself override professional privilege, see Daniels.
Accordingly, it cannot be contended that the respondent produced the document under compulsion of law. The document was provided unconditionally and without claim of privilege. I conclude that the respondent has made a knowing and voluntary disclosure of the substance of the evidence.
The final point relied upon by counsel for the respondent is that the disclosure constituted a confidential communication, because the coroner "was attended by an implied obligation not to disclose the document's contents". If it was a confidential communication, then the respondent will not be taken to have acted in a manner inconsistent with an objection based on client legal privilege: Evidence Act, s 122(5)(a)(i).
A "confidential communication" is defined by s 117 of the Evidence Act to mean:

[79]

There is nothing in the Coroners Act which would create such an obligation on the part of the coroner in respect of the document. On the contrary, if the document was disclosed in anticipation of or pursuant to the exercise of the coroner's powers under s 53(1), then it was disclosed in respect of the inevitable inquest. This is the case because the powers of the coroner under s 53 only apply if the coroner "reasonably believes it is necessary for the purposes of an inquest". By s 56, the coroner is to conduct the inquest in open court. Even if an assumption is made that the document was provided solely in respect of the coroner's investigation, and not the inquest, the coroner, although not required to make public the documents, is entitled to disclose the documents to any other person in the exercise of discretion: see Coroners Rules 2006, r 26. In these circumstances, it cannot be said that the coroner was under an express or implied obligation not to disclose the contents of the documents: see Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97.
Of course, it has been recognised that such an obligation can arise because of an understanding or agreement. In Hastie Group Ltd v Moore [2016] NSWCA 305, 339 ALR 635 at [60], the New South Wales Court of Appeal accepted that the concept of obligation extended to "an unspoken obligation, and to an ethical, moral or social obligation". It is unclear that the coroner would be entitled to accept documents subject to an undertaking or agreement not to disclose them to others, having regard to the abovementioned statutory provisions. In any event, as already noted, there is no evidence in this case that the documents were provided pursuant to any such undertaking or agreement.
I am satisfied therefore that the coroner was not under an express or implied obligation not to disclose the contents of the document. Accordingly, the disclosure of the document was not in the course of making a confidential communication.
It follows that by providing the document to the coroner, the respondent has made a knowing and voluntary disclosure of the substance of the evidence to another person. Accordingly, having regard to s 122(2), the client legal privilege to which the respondent was otherwise entitled has been lost. The magistrate erred by determining that this was not the case. This ground of review must succeed.

Roadside Products Pty Ltd v Cocker [2018] TASSC 6

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Roadside Products Pty Ltd v Cocker [2018] TASSC 6 (13 February 2018)